Henry Litton has been a central legal figure in Hong Kong for many decades. He co-founded the Hong Kong Law Journal over 50 years ago and enjoyed a distinguished career at the Bar before joining the Judiciary and rising to its highest levels. He was a permanent judge in the Court of Final Appeal (CFA) of the new Hong Kong Special Administrative Region (HKSAR) from 1997 to 2000 and a non-permanent judge in the CFA from 2000 to 2015.
The year 2047 in the title of this influential book (hereinafter, Sleepwalking) refers to the 50-year initial timespan (running from 1997) covering the accommodation of the HKSAR within China under the “one country, two systems” formula. Published in 2019, Sleepwalking offers a set of intense observations on the reformatting of Hong Kong's legal system.
These decisive changes to Hong Kong's legal regime were initiated several years before the reversion of sovereignty to Beijing in 1997. In 1991 (after 4 June 1989) the British Hong Kong government enacted the Bill of Rights Ordinance (BORO) based on the International Covenant on Civil and Political Rights (ICCPR). For around 150 years, prior to its enactment, the British took the view no such law as the BORO was needed in Hong Kong.
Sleepwalking includes a prologue, an epilogue and seven chapters. The prologue and epilogue provide Chinese translations. The text includes detailed references to relevant cases and numerous statutory provisions. Some may find the legal writing-style and the regular citations moderately daunting at first. The text is, however, consistently brisk and informative. The book reads like a sharp, instructive, extended legal judgment. Anyone with a serious interest in political-legal developments in Hong Kong will find it absorbing, though some will vigorously debate its concentrated arguments. It is also a book that offers a pivot for stimulating tutorials across varied courses.
Apart from authoring Sleepwalking, Litton is a regular, influential commentator on a range of legal and political topics of central concern in Hong Kong. He addresses contentious issues and takes robust positions. He has attracted a number of strong critics from the US and from within Hong Kong. Most censorious are those who celebrate the way the role of the Judiciary in Hong Kong has been transformed over the last 30 years as it has increasingly deployed its power to apply elaborate human rights tests to many aspects of governance.
A bedrock position advanced by the author is that the Common Law is developed by applying long-established legal principles to concrete, fact-based disputes, which are resolved within the broad context of any given Common Law jurisdiction. Influences may be taken into account from other jurisdictions – but there is no such thing as binding, transnational Common Law.
The pronounced impact of the BORO on the previous mode of case-based decision-making was signalled in 1993, in the Lee Kwong Kut case. Lord Woolf, speaking for the Privy Council, foreshadowed the dangers inherent in this change. Briefly, he warned that the BORO could cause disputes to get out of hand and become a source of injustice if complex proportionality tests were imposed inflexibly. He advocated that, in most cases, the courts should continue to strike a balance between individual rights and the public interest.
This judicious warning was roundly criticized by those favouring the application of a paramount level of proportionality testing. The critics won and their activist approach gathered impressive momentum.
Key aspects of this development are subject to trenchant criticism in Sleepwalking. Litton documents the erosion of the previous, definitive adherence to what he sees as common sense, fact-based decision-making in Hong Kong courts. This primary approach, he argues, has given way to massively over-argued, theory-based (not least and confusingly from the European Union) overlong legal decision-making, which, at great (usually public) cost, regularly fails to deliver fitting decisions. Much of this involves Judicial Review applications funded by Legal Aid. Lawyers lead and the judges follow, when, in fact, the judges should be saying, time and again, that there is no proper case to argue. By allowing themselves to be led, Litton contends, judges are surrendering their own judicial independence, step by step, to the lawyers arguing before them. Compounding the calamity is the fact that so many of these judgments fail the translatability test – into Chinese.
Moreover, judgments are regularly emerging from this process which test Beijing's predisposition to use its powerful interpretation power in Article 158 of the Beijing enacted, Basic Law of the HKSAR.
Henry Litton makes an absorbing case that this operational remodelling of the Common Law is bad at two crucial levels. First, the practical, fact-based functionality of the law has been seriously compromised. More importantly, this Hong Kong incubated, adverse development of the law, shepherded by the Judiciary, poses a visible threat to the prospects of retaining the full essence of Hong Kong's remarkable Common Law heritage over the long-term, well beyond 2047. Litton argues that collectively these vicissitudes spell “disaster as June 2047 gets ever closer” (p. 212).
Sleepwalking is a controversial work. It is also an authoritative book that has helped provoke a fresh, fundamental – and essential – conversation about the reshaping of the Hong Kong legal system and about how currently fit for purpose that system is for the journey to 2047 and beyond.
